UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

 

Docket Number: 95 C 477

Plaintiff(s)
LEON COLLINS

|
|

Assigned

Magistrate Judge: Morton Denlow

v.

|
|
|

 

   
Defendant(s)

CHICAGO and NORTHWESTERN TRANSPORTATION COMPANY, a foreign corporation,

|

Jury Demanded

 

JURY INSTRUCTIONS

 

INTRODUCTION TO THE FINAL CHARGE

MEMBERS OF THE JURY:

NOW THAT YOU HAVE HEARD ALL OF THE EVIDENCE TO BE RECEIVED IN THIS TRIAL AND EACH OF THE ARGUMENTS OF COUNSEL IT BECOMES MY DUTY TO GIVE YOU THE FINAL INSTRUCTIONS OF THE COURT AS TO THE LAW THAT IS APPLICABLE TO THIS CASE AND WHICH WILL GUIDE YOU IN YOUR DECISIONS.

ALL OF THE INSTRUCTIONS OF LAW GIVEN TO YOU BY THE COURT-THOSE GIVEN TO YOU AT THE BEGINNING OF THE TRIAL, THOSE GIVEN TO YOU DURING THE TRIAL, IF ANY, AND THESE FINAL INSTRUCTIONS-MUST GUIDE AND GOVERN YOUR DELIBERATIONS.

IT IS YOUR DUTY AS JURORS TO FOLLOW THE LAW AS STATED IN ALL OF THE INSTRUCTIONS OF THE COURT AND TO APPLY THESE RULES OF LAW TO THE FACTS AS YOU FIND THEM FROM THE EVIDENCE RECEIVED DURING THE TRIAL.

COUNSEL HAVE QUITE PROPERLY REFERRED TO SOME OF THE APPLICABLE RULES OF LAW IN THEIR CLOSING ARGUMENTS TO YOU. IF, HOWEVER, ANY DIFFERENCE APPEARS TO YOU BETWEEN THE LAW AS STATED BY COUNSEL AND THAT AS STATED BY THE COURT IN THESE INSTRUCTIONS, YOU, OF COURSE, ARE TO BE GOVERNED BY THE INSTRUCTIONS GIVEN TO YOU BY THE COURT.

YOU SHOULD NOT BE CONCERNED WITH THE WISDOM OF ANY RULE OF LAW STATED BY THE COURT. REGARDLESS OF ANY OPINION YOU MAY HAVE AS TO WHAT THE LAW OUGHT TO BE, IT WOULD BE A VIOLATION OF YOUR SWORN DUTY TO BASE ANY PART OF YOUR VERDICT UPON ANY OTHER VIEW OR OPINION OF THE LAW OTHER THAN THAT GIVEN IN THESE INSTRUCTIONS OF THE COURT JUST AS IT WOULD BE A VIOLATION OF YOUR SWORN DUTY, AS THE JUDGES OF THE FACTS, TO BASE YOUR VERDICT UPON ANYTHING BUT THE EVIDENCE RECEIVED IN THE CASE.

YOU WERE CHOSEN AS JURORS FOR THIS TRIAL IN ORDER TO EVALUATE ALL OF THE EVIDENCE RECEIVED AND TO DECIDE EACH OF THE FACTUAL QUESTIONS PRESENTED BY THE ALLEGATIONS BROUGHT BY THE PLAINTIFF, AND THE DENIAL OF THESE ALLEGATIONS BY THE DEFENDANT.

NOTHING I SAY IN THESE INSTRUCTIONS IS TO BE TAKEN AS AN INDICATION THAT I HAVE ANY OPINION ABOUT THE FACTS OF THE CASE, OR WHAT THAT OPINION IS. IT IS NOT MY FUNCTION TO DETERMINE THE FACTS, BUT RATHER YOURS.

YOU MUST PERFORM YOUR DUTIES AS JURORS WITHOUT BIAS OR PREJUDICE AS TO ANY PARTY. THE LAW DOES NOT PERMIT YOU TO BE GOVERNED BY SYMPATHY, PREJUDICE OR PUBLIC OPINION. ALL PARTIES EXPECT THAT YOU WILL CAREFULLY AND IMPARTIALLY CONSIDER ALL OF THE EVIDENCE, FOLLOW THE LAW AS IT IS NOW BEING GIVEN TO YOU, AND REACH A JUST VERDICT, REGARDLESS OF THE CONSEQUENCES.

THIS CASE SHOULD BE CONSIDERED AND DECIDED BY YOU AS AN ACTION BETWEEN PERSONS OF EQUAL STANDING IN THE COMMUNITY, OF EQUAL WORTH, AND HOLDING THE SAME OR SIMILAR STATIONS IN LIFE. A CORPORATION IS ENTITLED TO THE SAME FAIR TRIAL AT YOUR HANDS AS A PRIVATE INDIVIDUAL. ALL PERSONS, INCLUDING CORPORATIONS, STAND EQUAL BEFORE THE LAW, AND ARE TO BE DEALT WITH AS EQUALS IN A COURT OF JUSTICE.

WHEN A CORPORATION IS INVOLVED, OF COURSE, IT MAY ACT ONLY THROUGH NATURAL PERSONS AS ITS AGENTS OR EMPLOYEES; AND, IN GENERAL, ANY AGENT OR EMPLOYEE OF A CORPORATION MAY BIND THE CORPORATION BY HIS ACTS AND DECLARATIONS MADE WHILE ACTING WITHIN THE SCOPE OF HIS AUTHORITY DELEGATED TO HIM BY THE CORPORATION, OR WITHIN THE SCOPE OF HIS DUTIES AS AN EMPLOYEE OF THE CORPORATION. ANY NEGLIGENT ACT OR OMISSION OF AN OFFICER, OR EMPLOYEE, OR OTHER AGENT OF A CORPORATION (OTHER THAN THE PLAINTIFF HIMSELF), IN THE PERFORMANCE OF HIS DUTIES, IS HELD IN LAW TO BE THE NEGLIGENCE OF THE CORPORATION.

AS STATED EARLIER, IT IS YOUR DUTY TO DETERMINE THE FACTS, AND IN SO DOING, YOU MUST CONSIDER ONLY THE EVIDENCE I HAVE ADMITTED IN THE CASE. THE TERM "EVIDENCE" INCLUDES THE SWORN TESTIMONY OF THE WITNESS, SWORN TESTIMONY READ TO YOU FROM DEPOSITIONS OR SHOWN TO YOU ON TELEVISION, THE EXHIBITS ADMITTED IN THE RECORD, AND STIPULATED OR ADMITTED FACTS. A STIPULATION IS A STATEMENT OF FACT AGREED TO BETWEEN THE PARTIES, AND YOU MUST REGARD STIPULATED FACTS AS TRUE.

REMEMBER THAT ANY STATEMENTS, OBJECTIONS OR ARGUMENTS MADE BY THE LAWYERS ARE NOT EVIDENCE IN THE CASE. THE FUNCTION OF THE LAWYERS IS TO POINT OUT THOSE THINGS THAT ARE MOST SIGNIFICANT OR MOST HELPFUL TO THEIR SIDE OF THE CASE, AND IN SO DOING, TO CALL YOUR ATTENTION TO CERTAIN FACTS OR INFERENCES THAT MIGHT OTHERWISE ESCAPE YOUR NOTICE.

IN THE FINAL ANALYSIS, HOWEVER, IT IS YOUR OWN RECOLLECTION AND INTERPRETATION OF THE EVIDENCE THAT CONTROLS IN THE CASE. WHAT THE LAWYERS SAY IS NOT BINDING UPON YOU.

WHILE YOU SHOULD CONSIDER ONLY THE EVIDENCE IN THE CASE, YOU ARE PERMITTED TO DRAW SUCH REASONABLE INFERENCES FROM THE TESTIMONY AND EXHIBITS AS YOU FEEL ARE JUSTIFIED IN THE LIGHT OF YOUR OWN EXPERIENCE. IN OTHER WORDS, YOU MAY MAKE DEDUCTIONS AND REACH CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD YOU TO DRAW FROM THE FACTS WHICH HAVE BEEN ESTABLISHED BY THE TESTIMONY AND EVIDENCE IN THE CASE.

UNLESS YOU ARE OTHERWISE INSTRUCTED, THE EVIDENCE IN THE CASE ALWAYS CONSISTS OF THE SWORN TESTIMONY OF THE WITNESSES, REGARDLESS OF WHO MAY HAVE CALLED THEM; ALL EXHIBITS RECEIVED AS EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM; AND ALL FACTS WHICH MAY HAVE BEEN JUDICIALLY NOTICED.

ANY EVIDENCE AS TO WHICH AN OBJECTION WAS SUSTAINED BY THE COURT, AND ANY EVIDENCE ORDERED STRICKEN BY THE COURT, MUST BE ENTIRELY DISREGARDED.

UNLESS YOU ARE OTHERWISE INSTRUCTED, ANYTHING YOU MAY HAVE SEEN OR HEARD OUTSIDE THE COURTROOM IS NOT EVIDENCE AND MUST BE ENTIRELY DISREGARDED.

DURING THE TRIAL OF THIS CASE, CERTAIN TESTIMONY HAS BEEN PRESENTED TO YOU BY WAY OF DEPOSITION, CONSISTING OF SWORN RECORDED ANSWERS TO QUESTIONS ASKED OF THE WITNESS IN ADVANCE OF THE TRIAL BY ONE OR MORE OF THE ATTORNEYS FOR THE PARTIES TO THE CASE. THE TESTIMONY OF A WITNESS WHO, FOR SOME REASON, CANNOT BE PRESENT TO TESTIFY FROM THE WITNESS STAND MAY BE PRESENTED UNDER OATH ON A VIDEO RECORDING PLAYED ON A TELEVISION SET. SUCH TESTIMONY IS ENTITLED TO THE SAME CONSIDERATION, AND IS TO BE JUDGED AS TO CREDIBILITY, AND WEIGHED, AND OTHERWISE CONSIDERED BY THE JURY, IN SO FAR AS POSSIBLE, IN THE SAME WAY AS IF THE WITNESS HAD BEEN PRESENT, AND HAD TESTIFIED FROM THE WITNESS STAND.

YOU, AS JURORS, ARE THE SOLE JUDGES OF THE CREDIBILITY OF THE WITNESSES AND THE WEIGHT THEIR TESTIMONY DESERVES. YOU MAY BE GUIDED BY THE APPEARANCE AND CONDUCT OF THE WITNESS, OR BY THE MANNER IN WHICH THE WITNESS TESTIFIES, OR BY THE CHARACTER OF THE TESTIMONY GIVEN, OR BY THE EVIDENCE TO THE CONTRARY OF THE TESTIMONY GIVEN.

YOU SHOULD CAREFULLY SCRUTINIZE ALL THE TESTIMONY, GIVEN THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO SHOW WHETHER A WITNESS IS WORTHY OF BELIEF. CONSIDER EACH WITNESS' INTELLIGENCE, MOTIVE AND STATE OF MIND, AND DEMEANOR OR MANNER WHILE ON THE STAND. CONSIDER THE WITNESS' ABILITY TO OBSERVE THE MATTERS AS TO WHICH HE HAS TESTIFIED, AND WHETHER HE IMPRESSES YOU AS HAVING AN ACCURATE RECOLLECTION OF THESE MATTERS. CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO EITHER SIDE OF THE CASE; THE MANNER IN WHICH EACH WITNESS MIGHT BE AFFECTED BY THE VERDICT; AND THE EXTENT TO WHICH, IF AT ALL, EACH WITNESS IS EITHER SUPPORTED OR CONTRADICTED BY OTHER EVIDENCE IN THE CASE.

INCONSISTENCIES OR DISCREPANCIES IN THE TESTIMONY OF A WITNESS, OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES, MAY OR MAY NOT CAUSE THE JURY TO DISCREDIT SUCH TESTIMONY. TWO OR MORE PERSONS WITNESSING AN INCIDENT OR A TRANSACTION MAY SEE OR HEAR IT DIFFERENTLY; AND INNOCENT MISRECOLLECTION, LIKE FAILURE OF RECOLLECTION, IS NOT AN UNCOMMON EXPERIENCE. IN WEIGHING THE EFFECT OF A DISCREPANCY, ALWAYS CONSIDER WHETHER IT PERTAINS TO A MATTER OF IMPORTANCE OR AN UNIMPORTANT DETAIL, AND WHETHER THE DISCREPANCY RESULTS FROM INNOCENT ERROR OR INTENTIONAL FALSEHOOD.

AFTER MAKING YOUR OWN JUDGMENT, YOU WILL GIVE THE TESTIMONY OF EACH WITNESS SUCH WEIGHT, IF ANY, AS YOU MAY THINK IT DESERVES.

YOU MAY, IN SHORT, ACCEPT OR REJECT THE TESTIMONY OF ANY WITNESS IN WHOLE OR IN PART.

ALSO, THE WEIGHT OF THE EVIDENCE IS NOT NECESSARILY DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING TO THE EXISTENCE OR NON-EXISTENCE OF ANY FACT. YOU MAY FIND THAT THE TESTIMONY OF A SMALL NUMBER OF WITNESSES AS TO ANY FACT IS MORE CREDIBLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES TO THE CONTRARY.

THE LAW DOES NOT REQUIRE ANY PARTY TO CALL AS WITNESSES ALL PERSONS WHO MAY HAVE BEEN PRESENT AT ANY TIME OR PLACE INVOLVED IN THE CASE, OR WHO MAY APPEAR TO HAVE SOME KNOWLEDGE OF THE MATTERS IN ISSUE AT THIS TRIAL. NOR DOES THE LAW REQUIRE ANY PARTY TO PRODUCE AS EXHIBITS ALL PAPERS AND THINGS MENTIONED IN THE EVIDENCE IN THE CASE.

THERE ARE, GENERALLY SPEAKING, TWO TYPES OF EVIDENCE FROM WHICH A JURY MAY PROPERLY FIND THE TRUTH AS TO THE FACTS OF A CASE. ONE IS DIRECT EVIDENCE -- SUCH AS THE TESTIMONY OF AN EYEWITNESS. THE OTHER IS INDIRECT OR CIRCUMSTANTIAL EVIDENCE -- THE PROOF OF A CHAIN OF CIRCUMSTANCES POINTING TO THE EXISTENCE OR NON-EXISTENCE OF CERTAIN FACTS.

AS A GENERAL RULE, THE LAW MAKES NO DISTINCTION BETWEEN DIRECT OR CIRCUMSTANTIAL EVIDENCE, BUT SIMPLY REQUIRES THAT THE JURY FIND THE FACTS IN ACCORDANCE WITH THE PREPONDERANCE OF ALL THE EVIDENCE IN THE CASE, BOTH DIRECT AND CIRCUMSTANTIAL.

THE BURDEN IS ON THE PLAINTIFF IN A CIVIL ACTION SUCH AS THIS TO PROVE EVERY ESSENTIAL ELEMENT OF HIS CLAIM BY A "PREPONDERANCE OF THE EVIDENCE." A PREPONDERANCE OF THE EVIDENCE MEANS SUCH EVIDENCE AS, WHEN CONSIDERED AND COMPARED WITH THAT OPPOSED TO IT, HAS MORE CONVINCING FORCE AND PRODUCES IN YOUR MINDS A BELIEF THAT WHAT IS SOUGHT TO BE PROVED IS MORE LIKELY TRUE THAN NOT TRUE. IN OTHER WORDS, TO ESTABLISH A CLAIM BY A "PREPONDERANCE OF THE EVIDENCE" MEANS TO PROVE THAT THE CLAIM IS MORE LIKELY SO THAN NOT SO. THIS RULE DOES NOT REQUIRE PROOF TO AN ABSOLUTE CERTAINTY, SINCE PROOF TO AN ABSOLUTE CERTAINTY IS SELDOM POSSIBLE IN ANY CASE.

IN DETERMINING WHETHER ANY FACT IN ISSUE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE, THE JURY MAY CONSIDER THE TESTIMONY OF ALL THE WITNESS, REGARDLESS OF WHO MAY HAVE CALLED THEM, AND ALL THE EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM.

IF THE PROOF SHOULD FAIL TO ESTABLISH ANY ESSENTIAL ELEMENT OF THE PLAINTIFFS' CLAIM BY A PREPONDERANCE OF THE EVIDENCE, THEN THE PLAINTIFF HAS FAILED TO CARRY HIS BURDEN OF PROOF AND YOU MUST RETURN A VERDICT FOR THE DEFENDANT.

WHEN I SAY IN THESE INSTRUCTIONS THAT A PARTY HAS THE BURDEN OF PROOF ON ANY PROPOSITION, OR USE THE EXPRESSION "IF YOU FIND," OR "IF YOU DECIDE," I MEAN YOU MUST BE PERSUADED, CONSIDERING ALL THE EVIDENCE IN THE CASE, THAT THE PROPOSITION IS MORE PROBABLY TRUE THAN NOT TRUE.

THE FEDERAL EMPLOYERS' LIABILITY ACT.

AT THE TIME OF THE OCCURRENCE, THERE WAS IN FORCE A FEDERAL STATUTE KNOWN AS THE FEDERAL EMPLOYERS' LIABILITY ACT. THAT ACT PROVIDED THAT WHENEVER AN EMPLOYEE OF A RAILROAD IS INJURED WHILE ENGAGED IN THE COURSE OF HIS EMPLOYMENT, THE RAILROAD SHALL BE LIABLE IN DAMAGES TO THE INJURED EMPLOYEE, WHERE THE INJURY RESULTS IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ANY OF THE OFFICERS, AGENTS, OR OTHER EMPLOYEES OF THE RAILROAD.

CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INJURED EMPLOYEE SHALL NOT BAR A RECOVERY, BUT THE DAMAGES SHALL BE DIMINISHED BY THE JURY IN PROPORTION TO THE AMOUNT OF NEGLIGENCE ATTRIBUTABLE TO SUCH EMPLOYEE.

THE PLAINTIFF'S CLAIMS AND THE RAILROAD'S DEFENSES.

1. THE PLAINTIFF CLAIMS THAT HE WAS INJURED AND SUSTAINED DAMAGES WHILE HE WAS ENGAGED IN THE COURSE OF HIS EMPLOYMENT BY THE RAILROAD.

2. THE PLAINTIFF FURTHER CLAIMS THAT THE RAILROAD VIOLATED THE FEDERAL EMPLOYERS' LIABILITY ACT IN THAT IT:

A) NEGLIGENTLY AND CARELESSLY " HUMPED " A RAILROAD BOXCAR TO TRACK 14 WITHOUT ADEQUATELY NOTIFYING THE PLAINTIFF WHEN IT KNEW OR SHOULD HAVE KNOWN THAT PLAINTIFF WAS IN HARMS WAY;

B) NEGLIGENTLY AND CARELESSLY FAILED TO IMPLEMENT A SYSTEM OF RADIO COMMUNICATION IN WHICH SUFFICIENT RADIO CHANNELS PREVENTED THE INTERRUPTION OF VITAL RADIO COMMUNICATIONS BY MULTIPLE CREWS WORKING IN THE SAME YARD AT THE SAME TIME; AND

C) NEGLIGENTLY AND CARELESSLY PLACED TRACKS 14 AND 15 TOO CLOSE TOGETHER TO ALLOW FOR THE SAFE MOVEMENT OF BRAKEMEN BETWEEN MOVING RAILROAD CARS.

3. THE PLAINTIFF FURTHER CLAIMS THAT THE INJURY RESULTED IN WHOLE OR IN PART FROM ONE OR MORE OF THE ALLEGED VIOLATIONS OF THE ACT.

4. THE RAILROAD DENIES THAT IT VIOLATED THE FEDERAL EMPLOYERS' LIABILITY ACT AS CLAIMED BY THE PLAINTIFF.

5. THE RAILROAD FURTHER DENIES THAT ANY OF THE ALLEGED INJURIES RESULTED, IN WHOLE OR IN PART, FROM ANY VIOLATION OF THE ACT.

6. THE RAILROAD FURTHER DENIES THAT THE PLAINTIFF SUSTAINED DAMAGES TO THE EXTENT CLAIMED.

7. THE RAILROAD CLAIMS THAT THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT IN THAT HE:

A) CARELESSLY AND NEGLIGENTLY FAILED TO KEEP HIMSELF IN A SAFE POSITION AND CLEAR OF TRAIN MOVEMENTS ON AN ADJACENT ACTIVE TRACK; AND

B) CARELESSLY AND NEGLIGENTLY FAILED TO MONITOR AND LISTEN TO HIS RADIO FOR THE COMMUNICATIONS WHICH WARNED HIM OF THE MOVEMENT ON THE ADJACENT TRACK.

8. THE RAILROAD FURTHER CLAIMS THAT ONE OR MORE OF THE FOREGOING CAUSED, IN WHOLE OR IN PART, THE PLAINTIFF'S INJURIES.

9. THE PLAINTIFF DENIES THAT HE DID ANY OF THE THINGS CLAIMED BY THE RAILROAD, DENIES THAT HE WAS NEGLIGENT IN DOING ANY OF THE THINGS CLAIMED BY THE RAILROAD, AND DENIES THAT ANY CLAIMED ACT OR OMISSION ON HIS PART CAUSED, IN WHOLE OR IN PART, HIS CLAIMED INJURIES.

DEFINITION OF NEGLIGENCE.

NEGLIGENCE IS THE DOING OF SOME ACT WHICH A REASONABLY PRUDENT PERSON WOULD NOT DO, OR THE FAILURE TO DO SOMETHING WHICH A REASONABLY PRUDENT PERSON WOULD DO, WHEN PROMPTED BY CONSIDERATIONS WHICH ORDINARILY REGULATE THE CONDUCT OF HUMAN AFFAIRS. IT IS, IN OTHER WORDS, THE FAILURE TO USE ORDINARY CARE UNDER THE CIRCUMSTANCES IN THE MANAGEMENT OF ONE'S PERSON OR PROPERTY.

DEFINITION OF ORDINARY CARE.

"ORDINARY CARE" IS THAT CARE WHICH REASONABLY PRUDENT PERSONS EXERCISE IN THE MANAGEMENT OF THEIR OWN AFFAIRS, IN ORDER TO AVOID INJURY TO THEMSELVES OR THEIR PROPERTY, OR THE PERSONS OR PROPERTY OF OTHERS.

ORDINARY CARE IS NOT AN ABSOLUTE TERM, BUT A RELATIVE ONE. THAT IS TO SAY, IN DECIDING WHETHER ORDINARY CARE WAS EXERCISED IN A GIVEN CASE, THE CONDUCT IN QUESTION MUST BE VIEWED IN THE LIGHT OF ALL THE SURROUNDING CIRCUMSTANCES AS SHOWN BY THE EVIDENCE IN THE CASE.

BECAUSE THE AMOUNT OF CARE EXERCISED BY A REASONABLY PRUDENT PERSON VARIES IN PROPORTION TO THE DANGER KNOWN TO BE INVOLVED IN WHAT IS BEING DONE, IT FOLLOWS THAT THE AMOUNT OF CAUTION REQUIRED, IN THE USE OF ORDINARY CARE, WILL VARY WITH THE NATURE OF WHAT IS BEING DONE, AND ALL THE SURROUNDING CIRCUMSTANCES SHOWN BY THE EVIDENCE IN THE CASE. TO PUT IT ANOTHER WAY, AS THE DANGER THAT SHOULD REASONABLY

BE FORESEEN INCREASES, SO THE AMOUNT OF CARE REQUIRED BY LAW ALSO INCREASES.

THE MERE FACT THAT AN ACCIDENT HAPPENED, STANDING ALONE, DOES NOT, UNLESS OTHERWISE EXPRESSLY STATED, PERMIT THE JURY TO DRAW THE INFERENCE THAT THE ACCIDENT WAS CAUSED BY ANYONE'S NEGLIGENCE.

DEFINITION OF CONTRIBUTORY NEGLIGENCE.

WHEN I USE THE EXPRESSION "CONTRIBUTORY NEGLIGENCE," I MEAN NEGLIGENCE ON THE PART OF THE PLAINTIFF THAT CONTRIBUTED IN WHOLE OR IN PART TO THE ALLEGED INJURY.

THE ESSENTIAL ELEMENTS OF PLAINTIFF'S CLAIM.

THE PLAINTIFF HAS THE BURDEN OF PROVING EACH OF THE FOLLOWING PROPOSITIONS:

FIRST, THAT HE WAS INJURED AND SUSTAINED DAMAGES WHILE HE WAS ENGAGED IN THE COURSE OF HIS EMPLOYMENT BY THE RAILROAD. THE PARTIES STIPULATE THAT AT THE TIME OF HIS INJURY, THE PLAINTIFF WAS IN THE COURSE OF HIS EMPLOYMENT BY THE RAILROAD.

SECOND, THAT THE RAILROAD VIOLATED THE FEDERAL EMPLOYERS' LIABILITY ACT IN AT LEAST ONE OF THE WAYS CLAIMED BY THE PLAINTIFF AS STATED TO YOU ON PAGE 15 IN THESE INSTRUCTIONS.

THIRD, THAT THE INJURY AND DAMAGES TO THE PLAINTIFF RESULTED, IN WHOLE OR IN PART, FROM A VIOLATION OF THE FEDERAL EMPLOYERS' LIABILITY ACT.

IF YOU FIND FROM YOUR CONSIDERATION OF ALL THE EVIDENCE THAT EACH OF THESE PROPOSITIONS HAS BEEN PROVED, THEN YOUR VERDICT SHOULD BE FOR THE PLAINTIFF. IF, ON THE OTHER HAND, YOU FIND FROM YOUR CONSIDERATION OF ALL THE EVIDENCE THAT ANY OF THESE PROPOSITIONS HAS NOT BEEN PROVED, THEN YOUR VERDICT SHOULD BE FOR THE RAILROAD.

DEFENSE OF CONTRIBUTORY NEGLIGENCE.

IF YOU FIND IN FAVOR OF THE PLAINTIFF AND AGAINST THE RAILROAD, YOU MUST THEN CONSIDER THE RAILROAD'S CLAIM THAT THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT.

AS TO THAT CLAIM, THE RAILROAD HAS THE BURDEN OF PROVING EACH OF THE FOLLOWING PROPOSITIONS:

FIRST, THAT THE PLAINTIFF ACTED OR FAILED TO ACT IN ONE OF THE WAYS CLAIMED BY THE RAILROAD AS STATED TO YOU ON PAGE 16 IN THESE INSTRUCTIONS AND THAT IN SO ACTING, OR FAILING TO ACT, THE PLAINTIFF WAS NEGLIGENT.

SECOND, THAT THE PLAINTIFF'S NEGLIGENCE WAS A CAUSE IN WHOLE OR IN PART OF HIS INJURY.

IF YOU FIND FROM YOUR CONSIDERATION OF ALL THE EVIDENCE THAT THE RAILROAD HAS PROVED EACH OF THESE PROPOSITIONS, THEN YOU WILL REDUCE THE PLAINTIFF'S DAMAGES IN THE MANNER STATED TO YOU IN THESE INSTRUCTIONS. ON THE OTHER HAND, IF YOU FIND FROM YOUR CONSIDERATION OF ALL THE EVIDENCE THAT EITHER OF THESE PROPOSITIONS HAS NOT BEEN PROVED, THEN YOU WILL NOT REDUCE THE PLAINTIFF'S DAMAGES.

DUTY OF THE RAILROAD.

IT WAS THE CONTINUING DUTY OF THE RAILROAD, AS AN EMPLOYER, AT THE TIME AND PLACE IN QUESTION, TO USE ORDINARY CARE UNDER THE CIRCUMSTANCES, IN FURNISHING THE PLAINTIFF WITH A REASONABLY SAFE PLACE IN WHICH TO WORK, AND TO USE ORDINARY CARE UNDER THE CIRCUMSTANCES TO MAINTAIN AND KEEP SUCH PLACE OF WORK IN A REASONABLY SAFE CONDITION. THIS DOES NOT MEAN, OF COURSE, THAT THE RAILROAD IS A GUARANTOR OR INSURER OF THE SAFETY OF THE PLACE TO WORK. THE EXTENT OF THE RAILROAD'S DUTY IS TO EXERCISE ORDINARY CARE, UNDER THE CIRCUMSTANCES, TO SEE THAT THE PLACE IN WHICH THE WORK IS TO BE PERFORMED IS REASONABLY SAFE, UNDER THE CIRCUMSTANCES SHOWN BY THE EVIDENCE IN THE CASE.

DUTY OF THE PLAINTIFF.

IT WAS THE DUTY OF THE PLAINTIFF, AT THE TIME AND PLACE IN QUESTION, TO USE ORDINARY CARE UNDER THE CIRCUMSTANCES FOR HIS OWN SAFETY.

INSTRUCTIONS REGARDING DAMAGES.

IF YOU DECIDE FOR THE PLAINTIFF ON THE QUESTION OF LIABILITY, YOU MUST THEN FIX THE AMOUNT OF MONEY WHICH WILL REASONABLY AND FAIRLY COMPENSATE HIM FOR ANY OF THE FOLLOWING ELEMENTS OF DAMAGES PROVED BY THE EVIDENCE TO HAVE RESULTED FROM THE NEGLIGENCE OF THE RAILROAD, TAKING INTO CONSIDERATION THE NATURE, EXTENT AND DURATION OF THE INJURY.

THE DISABILITY RESULTING FROM THE INJURY.

THE DISFIGUREMENT RESULTING FROM THE INJURY.

THE PAIN AND SUFFERING EXPERIENCED AND REASONABLY CERTAIN TO BE EXPERIENCED IN THE FUTURE AS A RESULT OF THE INJURY. THE VALUE OF PAST EARNINGS AND FUTURE EARNINGS REASONABLY CERTAIN TO BE LOST IN THE FUTURE.

WHETHER ANY OF THESE ELEMENTS OF DAMAGES HAS BEEN PROVED BY THE EVIDENCE IS FOR YOU TO DETERMINE.

IF YOU FIND THAT THE PLAINTIFF IS ENTITLED TO DAMAGES ARISING IN THE FUTURE BECAUSE OF INJURIES OR BECAUSE OF LOSS OF EARNINGS, YOU MUST DETERMINE THE AMOUNT OF THESE DAMAGES WHICH WILL ARISE IN THE FUTURE.

IF THESE DAMAGES ARE OF A CONTINUING NATURE, YOU MAY CONSIDER HOW LONG THEY WILL CONTINUE. IF THESE DAMAGES ARE PERMANENT IN NATURE, THEN IN COMPUTING THESE DAMAGES YOU MAY CONSIDER HOW LONG THE PLAINTIFF IS LIKELY TO LIVE.

WITH RESPECT TO A LOSS OF FUTURE EARNINGS, YOU MAY CONSIDER THAT SOME PERSONS WORK ALL THEIR LIVES AND OTHERS DO NOT AND THAT A PERSON'S EARNINGS MAY REMAIN THE SAME OR MAY INCREASE OR DECREASE IN THE FUTURE.

THE PLAINTIFF IS UNDER A LEGAL OBLIGATION TO MITIGATE HIS DAMAGES, THAT IS, TO MINIMIZE THE ECONOMIC LOSS RESULTING FROM HIS INJURY, BY RESUMING REASONABLE EMPLOYMENT AS SOON AS SUCH CAN REASONABLY BE DONE. THE RAILROAD HAS THE BURDEN OF PROOF ON THIS ISSUE OF MITIGATION OF DAMAGES.

IN COMPUTING THE DAMAGES ARISING IN THE FUTURE BECAUSE OF THE LOSS OF FUTURE EARNINGS YOU MUST NOT SIMPLY MULTIPLY THE EARNINGS BY THE LENGTH OF TIME YOU HAVE FOUND THEY WILL CONTINUE. INSTEAD, YOU MUST DETERMINE THEIR PRESENT CASH VALUE. "PRESENT CASH VALUE" MEANS THE SUM OF MONEY NEEDED NOW, WHICH, WHEN ADDED TO WHAT THAT SUM MAY REASONABLY BE EXPECTED TO EARN IN THE FUTURE, WILL EQUAL THE AMOUNT OF THE EARNINGS AT THE TIME IN THE FUTURE WHEN THE EARNINGS WOULD HAVE BEEN RECEIVED.

DAMAGES FOR DISABILITY, DISFIGUREMENT AND PAIN AND SUFFERING SHOULD NOT BE REDUCED TO PRESENT CASH VALUE.

THE PLAINTIFF WILL NOT BE REQUIRED TO PAY ANY FEDERAL OR STATE INCOME TAXES ON ANY AMOUNT THAT YOU MAY AWARD.

ACCORDING TO A TABLE OF MORTALITY IN EVIDENCE, THE LIFE EXPECTANCY OF A 55-YEAR-OLD AFRICAN-AMERICAN MALE IS 19 YEARS. THIS FIGURE IS NOT CONCLUSIVE. IT IS THE AVERAGE LIFE EXPECTANCY OF SUCH PERSONS WHO HAVE REACHED THE AGE OF 55. IT MAY BE CONSIDERED BY YOU IN CONNECTION WITH OTHER EVIDENCE RELATING TO THE PROBABLE LIFE EXPECTANCY OF THE PLAINTIFF IN THIS CASE, INCLUDING EVIDENCE OF HIS OCCUPATION, HEALTH, HABITS, AND OTHER ACTIVITIES, BEARING IN MIND THAT SOME PERSONS LIVE LONGER AND SOME PERSONS LESS THAN THE AVERAGE.

EFFECT OF INSTRUCTIONS AS TO DAMAGES.

THE FACT THAT I HAVE INSTRUCTED YOU AS TO THE PROPER MEASURE OF DAMAGES SHOULD NOT BE CONSIDERED AS INTIMATING ANY VIEW OF MINE AS TO WHICH PARTY IS ENTITLED TO YOUR VERDICT IN THIS CASE. INSTRUCTIONS AS TO THE MEASURE OF DAMAGES ARE GIVEN FOR YOUR GUIDANCE, IN THE EVENT YOU SHOULD FIND IN FAVOR OF THE PLAINTIFF FROM A PREPONDERANCE OF THE EVIDENCE IN THE CASE IN ACCORDANCE WITH THE OTHER INSTRUCTIONS.

UPON RETIRING TO THE JURY ROOM, YOU WILL FIRST SELECT ONE OF YOUR NUMBER TO ACT AS FOREPERSON. THE FOREPERSON WILL PRESIDE OVER YOUR DELIBERATIONS AND WILL BE YOUR SPOKESPERSON HERE IN COURT.


VERDICT FORMS HAVE BEEN PREPARED FOR YOUR CONVENIENCE.

YOU WILL TAKE THE VERDICT FORMS TO THE JURY ROOM AND, WHEN YOU HAVE REACHED UNANIMOUS AGREEMENT AS TO YOUR VERDICT, YOU WILL ALL SIGN AND DATE THE FORM WHICH SETS FORTH THE VERDICT UPON WHICH YOU UNANIMOUSLY AGREE AND THEN RETURN WITH YOUR VERDICT TO THE COURTROOM.

EXPLANATION OF VERDICT FORMS.

THREE DIFFERENT FORMS OF VERDICT ARE SUPPLIED WITH THESE INSTRUCTIONS. AFTER YOU HAVE REACHED YOUR VERDICT, FILL IN, SIGN, AND DATE THE APPROPRIATE FORM OF VERDICT AND RETURN IT TO THE COURT. YOUR VERDICT MUST BE SIGNED BY EACH OF YOU. YOU SHOULD NOT WRITE OR MARK UPON THIS OR ANY OF THE OTHER INSTRUCTIONS GIVEN TO YOU BY THE COURT.

EXPLANATION OF VERDICT FORM A.

IF YOU FIND FOR LEON COLLINS AND AGAINST CHICAGO & NORTH WESTERN TRANSPORTATION CO., AND IF YOU FURTHER FIND THAT LEON COLLINS WAS NOT CONTRIBUTORILY NEGLIGENT, THEN YOU SHOULD USE VERDICT FORM A.

EXPLANATION OF VERDICT FORM B.

IF YOU FIND THAT THE PLAINTIFF'S INJURY WAS CAUSED BY A COMBINATION OF NEGLIGENCE OF THE RAILROAD AND CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF, YOU MUST DETERMINE THE AMOUNT OF DAMAGES TO BE AWARDED BY YOU ON VERDICT FORM B AS FOLLOWS:

FIRST: DETERMINE THE TOTAL AMOUNT OF DAMAGES TO WHICH THE PLAINTIFF WOULD BE ENTITLED UNDER THE COURT'S INSTRUCTIONS IF THE PLAINTIFF HAD NOT BEEN CONTRIBUTORILY NEGLIGENT.

SECOND: ASSUME THAT 100% REPRESENTS THE TOTAL COMBINED NEGLIGENCE OF THE PLAINTIFF AND THE RAILROAD. THEN DETERMINE THE PERCENTAGE OF SUCH NEGLIGENCE ATTRIBUTABLE SOLELY TO THE PLAINTIFF.

THIRD: REDUCE THE TOTAL AMOUNT OF THE PLAINTIFF'S DAMAGES BY THE PROPORTION OR PERCENTAGE OF NEGLIGENCE ATTRIBUTABLE SOLELY TO THE PLAINTIFF.

THE RESULTING AMOUNT, AFTER MAKING SUCH REDUCTION, WILL BE THE AMOUNT OF YOUR VERDICT.

EXPLANATION OF VERDICT FORM C.

IF YOU FIND FOR CHICAGO & NORTH WESTERN TRANSPORTATION CO. AND AGAINST LEON COLLINS, THEN YOU SHOULD USE VERDICT FORM C.


VERDICT FORM A

WE, THE JURY, FIND FOR LEON COLLINS AND AGAINST CHICAGO & NORTH WESTERN TRANSPORTATION CO.

WE ASSESS DAMAGES ITEMIZED AS FOLLOWS:

1) THE DISABILITY RESULTING FROM THE INJURY: $___________

2) THE DISFIGUREMENT RESULTING FROM THE INJURY: $___________

3) THE PAIN AND SUFFERING EXPERIENCED AND REASONABLY CERTAIN TO BE EXPERIENCED IN THE FUTURE AS A RESULT OF THE INJURY: $___________

4) THE VALUE OF PAST EARNINGS: $____________

5) THE PRESENT CASH VALUE OF EARNINGS REASONABLY CERTAIN TO BE LOST IN THE FUTURE: $____________

6) PLAINTIFF'S TOTAL DAMAGES: (ADD LINES 1 - 5): $_____________

 

FOREPERSON

DATE


VERDICT FORM B

WE, THE JURY, FIND FOR LEON COLLINS AND AGAINST CHICAGO & NORTH WESTERN TRANSPORTATION CO. AND FURTHER FIND THE FOLLOWING:

FIRST: WITHOUT TAKING INTO CONSIDERATION THE QUESTION OF REDUCTION OF DAMAGES DUE TO THE NEGLIGENCE OF LEON COLLINS, WE FIND THAT THE TOTAL AMOUNT OF DAMAGES SUFFERED BY LEON COLLINS AS A PROXIMATE RESULT OF THE OCCURRENCE IN QUESTION IS ITEMIZED AS FOLLOWS:

1) THE DISABILITY RESULTING FROM THE INJURY: $___________

2) THE DISFIGUREMENT RESULTING FROM THE INJURY: $___________

3) THE PAIN AND SUFFERING EXPERIENCED AND REASONABLY CERTAIN TO BE EXPERIENCED IN THE FUTURE AS A RESULT OF THE INJURY: $___________

4) THE VALUE OF PAST EARNINGS: $___________

5) THE PRESENT CASH VALUE OF EARNINGS REASONABLY CERTAIN TO BE LOST IN THE FUTURE: $___________

6) PLAINTIFF'S TOTAL DAMAGES: (ADD LINES 1 - 5): $__________

 

SECOND: ASSUMING THAT 100% REPRESENTS THE TOTAL COMBINED NEGLIGENCE OF ALL PERSONS WHOSE NEGLIGENCE PROXIMATELY CONTRIBUTED TO THE PLAINTIFF'S INJURIES, INCLUDING LEON COLLINS AND CHICAGO & NORTH WESTERN TRANSPORTATION CO., WE FIND THAT THE PERCENTAGE OF SUCH NEGLIGENCE ATTRIBUTABLE SOLELY TO LEON COLLINS IS _______ PERCENT (%).

THIRD: AFTER REDUCING THE TOTAL DAMAGES SUSTAINED BY LEON COLLINS BY THE PERCENTAGE OF NEGLIGENCE ATTRIBUTABLE SOLELY TO LEON COLLINS, WE AWARD LEON COLLINS DAMAGES IN THE SUM OF $_________________, AGAINST THE CHICAGO & NORTH WESTERN TRANSPORTATION CO.

 

 

FOREPERSON


DATE




VERDICT FORM C

WE, THE JURY, FIND FOR CHICAGO & NORTH WESTERN TRANSPORTATION CO. AND AGAINST LEON COLLINS.

 

FOREPERSON


DATE




VERDICT FORMS -- JURY'S RESPONSIBILITY.

IT IS PROPER TO ADD THE CAUTION THAT NOTHING SAID IN THESE INSTRUCTIONS AND NOTHING IN ANY FORM OF VERDICT PREPARED FOR YOUR CONVENIENCE IS MEANT TO SUGGEST OR CONVEY IN ANY WAY OR MANNER ANY INTIMATION AS TO WHAT VERDICT I THINK YOU SHOULD FIND. WHAT THE VERDICT SHALL BE IS YOUR SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY.

VERDICT - UNANIMOUS - DUTY TO DELIBERATE.

THE VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. IN ORDER TO RETURN A VERDICT, IT IS NECESSARY THAT EACH JUROR AGREE. YOUR VERDICT MUST BE UNANIMOUS.

IT IS YOUR DUTY, AS JURORS, TO CONSULT WITH ONE ANOTHER, AND TO DELIBERATE WITH A VIEW TO REACHING AN AGREEMENT, IF YOU CAN DO SO WITHOUT VIOLENCE TO INDIVIDUAL JUDGMENT. YOU MUST EACH DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER AN IMPARTIAL CONSIDERATION OF THE EVIDENCE IN THE CASE WITH YOUR FELLOW JURORS. IN THE COURSE OF YOUR DELIBERATIONS, DO NOT HESITATE TO RE-EXAMINE YOUR OWN VIEWS, AND CHANGE YOUR OPINION, IF CONVINCED IT IS ERRONEOUS. BUT DO NOT SURRENDER YOUR HONEST CONVICTION AS TO THE WEIGHT OR EFFECT OF EVIDENCE, SOLELY BECAUSE OF THE OPINION OF YOUR FELLOW JURORS, OR FOR THE MERE PURPOSE OF RETURNING A VERDICT.

REMEMBER AT ALL TIMES THAT YOU ARE NOT PARTISANS. YOU ARE JUDGES -- JUDGES OF THE FACTS. YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE IN THE CASE.

COMMUNICATIONS BETWEEN COURT AND JURY DURING DELIBERATIONS.

IF IT BECOMES NECESSARY DURING YOUR DELIBERATIONS TO COMMUNICATE WITH THE COURT, YOU MAY SEND A NOTE BY A COURT SECURITY OFFICER, SIGNED BY YOUR FOREPERSON OR BY ONE OR MORE MEMBERS OF THE JURY. NO MEMBER OF THE JURY SHOULD EVER ATTEMPT TO COMMUNICATE WITH THE COURT BY ANY MEANS OTHER THAN A SIGNED WRITING, AND THE COURT WILL NEVER COMMUNICATE WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE OTHERWISE THAN IN WRITING, OR ORALLY HERE IN OPEN COURT.

YOU WILL NOTE FROM THE OATH ABOUT TO BE TAKEN BY THE COURT SECURITY OFFICER THAT HE TOO, AS WELL AS ALL OTHER PERSONS, ARE FORBIDDEN TO COMMUNICATE IN ANY WAY OR MANNER WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE.

BEAR IN MIND THAT YOU ARE NEVER TO REVEAL TO ANY PERSON -- NOT EVEN TO THE COURT -- HOW THE JURY STANDS, NUMERICALLY OR OTHERWISE, ON THE QUESTIONS BEFORE YOU, UNTIL AFTER YOU HAVE REACHED A UNANIMOUS VERDICT.